Why the Web Is Freaking Out Over Instagram’s New Terms of Service

This move by Facebook’s newly acquired photo-sharing app has upset a lot of users and web personalities, mainly due to one clause in the terms of service, which at face value appears to give Instagram the right to use photos for advertisements.

Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.

Dissecting this a little further, this gives Instagram the right to serve advertisements to you next to your photos. Remember, it was only recently that Instagram unveiled Web profiles — a new spot where Facestagram can start serving advertisements and sponsored content.

But the door also seems open for Instagram to sell your photos to sponsors, sending the Web into a minor frenzy. Here are some of the headlines around the Web:

First things first: Instagram is now a part of Facebook, after the company paid what was about $1 billion at the time for the service. Here are Facebook’s terms of service, for similar circumstances:

You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name and profile picture in connection with that content, subject to the limits you place.

We do not give your content or information to advertisers without your consent.

You understand that we may not always identify paid services and communications as such.

We may use your User Submissions in a number of different ways in connection with the Site, Service and foursquare’s business as foursquare may determine in its sole discretion, including but not limited to, publicly displaying it, reformatting it, incorporating it into marketing materials, advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing other users to do the same in connection with their own websites, media platforms, and applications (“Third Party Media”).

Yet both of these services have shied away from using photos in the same fashion. Facebook does surfaces users’ content in advertisers’ Sponsored Stories, but not the actual photos.

If Instagram were to follow through and “sell” users’ photos — in an extreme example, a baby-shampoo brand decides to use a father’s baby photo in an advertisement — that could easily lead to a user revolt, much like what is happening in its earliest form on the Web right now. Instagram has to make money because it is a business after all, but it can’t do that if its users are leaving in droves for other services.

Most of these terms are necessary to ensure that third-party applications, such as apps that connect to services such as Facebook and Foursquare, can do the things they do. Twitter’s terms of service spells it out with a “tips” section in a similar fashion to Facebook’s and Foursquare’s terms:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

Tip This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.

You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Tip Twitter has an evolving set of rules for how ecosystem partners can interact with your Content. These rules exist to enable an open ecosystem with your rights in mind. But what’s yours is yours – you own your Content (and your photos are part of that Content).

Long story short, the door seems open for Instagram to do exactly what the Web is suggesting it might do. Whether it will be just as bad as what the hive mind believes will happen is an entirely different story – and seems unlikely, given the track record of Facebook and other Web 2.0 services.